The base line level is that as law serves society understanding law demands an understanding of society and for me this understanding is theoretical - informed by the theories of modernity. As society changes structurally, pre-perceived notions demand re-evaluation and this has an impact as to how we can understand law and its function. It also forces me to be inter-, multi- and cross-disciplinary. Currently, of special interest in this context are contemporary notions of modernity as well as related concepts such complexity and uncertainty and their bearing on legal theory and law, for example on end-of-life decisions (euthanasia), legality and rule of law, and global justice. In addition, I seek to write on legal education and experiment with educational methods. Phone: +31-(0)30-253.70.83 Address: Dep. of Legal Theory Faculty of Law, Utrecht University Achter St. Pieter 200 3512 HT Utrecht THE NETHERLANDS
This book of essays follows from and adds to the presentations, discussions and debates – the exc... more This book of essays follows from and adds to the presentations, discussions and debates – the exchan¬ges of ideas – of the Critical Legal Conference 2010, held in Utrecht at the Department of Legal Theory of the Faculty of Law (Utrecht University). The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a sing¬le encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
What ties the essays together is their critique on contem¬porary society or an aspect of society, from a legal-theoretical perspective. Critique implies a method of observation, analysis, interpretation and argumentation, representing a point of view on what is wrong with law in contemporary society. The common denominator is the argument that there is something wrong with law. This is how critical legal theory dis¬tinguishes itself from mainstream legal theory.
What is wrong with law is its actual and potential normative abuse. Social developments demand a critical perspective on law and legal scholarship to lay bare this abuse. These developments relate the financial and economic crisis, the continuing ‘humanitarian’ wars, the rising intolerance to the other and the perceived threat they pose. Hence, human rights are employed by the state to justify torture; the law on patents and intellectual pro¬perty prevent any sense of responsibility for the lack of access to healthcare by the global poor (suffering from aids); trade law exists on the premise of equality of market access, which de facto is a fallacy; and security laws are implemented for the sake of freedom, etc.
Each essay offers, so to speak a social diagnosis to lay bare how law is abused normati¬vely. The essays do so, to open eyes and stimulate debate in the hope to affect some change in what law is and ought to be and do.
This book contains student essays (in Dutch and English) in which the work of Zygmunt Bauman, in ... more This book contains student essays (in Dutch and English) in which the work of Zygmunt Bauman, in particular his "Postmodern Ethics", is critically appraised from a legal perspective, connecting it to issues such as euthanasia, crime and punishment, global justice and organ donation.
Incidents of identity fraud are increasing in scope and variety and can be regarded as a global p... more Incidents of identity fraud are increasing in scope and variety and can be regarded as a global problem. Understanding the problem properly demands a general description of identity fraud. An extensive review of the literature shows that there is no such general description, although it would contribute to the development of a structural and cooperative approach among relevant stakeholders (states, IGOs, private enterprises, NGOs) in Europe and elsewhere to combat identity fraud. This book consists of an analysis of literature in the Netherlands, the USA, the UK, France, Belgium and the European Union. Some 30 definitions were analyzed with an aim to formulate a general definition of identity fraud. Formulating such a definition enabled a subsequent analysis to what extent identity fraud is covered by existing legislative measures and the necessity or desirability of introducing new legislative measures.
This book studies the notions of welfare and production aims as frames of reference for intensive... more This book studies the notions of welfare and production aims as frames of reference for intensive animal farming in the Netherlands. It does so from a political, legal and moral perspective. What is the current legal framework and how can we justify the use of animals (or not) for economic gain.
Law teachers at the university want students to develop a critical attitude. But what exactly doe... more Law teachers at the university want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted? In this article we intend to elucidate the role that critical thinking may play in legal education. We will introduce the idea of skeptical legal education, which is to a large extent based on Michael Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential. Subsequently, the article presents a teaching experiment, where students, based on self-organization, study and discuss fundamental texts. The experiment is meant to demonstrate the possibility of reflexivity in skeptical legal education.
A contracorriente de quienes ven en nuestros tiempos una «postmodernidad» caótica, donde todo ha ... more A contracorriente de quienes ven en nuestros tiempos una «postmodernidad» caótica, donde todo ha perdido sus contornos y no existen ya certezas como en el pasado, Lyana Francot y Ubaldus de Vries, de la mano de la teoría de la modernización reflexiva de Ulrich Beck, demuestran cuán arraigada está nuestra época en la «modernidad» supuestamente superada (o negada) y cuán concretos son sus problemas y sus riesgos. Además, basados en una visión liberal del derecho, proponen una forma de solucionar equitativamente los enormes desafíos que enfrentan nuestras sociedades globalizadas.
This book of essays follows from and adds to the presentations, discussions and debates – the exc... more This book of essays follows from and adds to the presentations, discussions and debates – the exchanges of ideas – of the Critical Legal Conference 2010, held in Utrecht 10-12 September at the Department of Legal Theory of the Faculty of Law (Utrecht University).
The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a single encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
Most law degree courses start with one or more introductory course to law. It is within these co... more Most law degree courses start with one or more introductory course to law. It is within these courses that students get acquainted with law, where it comes from, what it does and how a legal system is organised and structured. Usually, the focus is on positive law – the existing law of the particular jurisdiction in which the student is studying law. It means that introduction to law courses are really introduction to current Dutch positive law, English positive law, etc.
This stream seeks to explore the ideas behind such courses. It does so on the presumption that in these courses the tone is (or can be/should be) set as regards the academic attitude we expect from students: an inquisitive, critical perspective on law, what it is and what it does. What are the perspectives taken on law in these courses and what methods are explored in teaching students to study law inquisitively and critically? Is it by contextualising law through social theory (the age of technology in modernity, post-modernity, liquid modernity, second modernity?), through emphasising a philosophical basis of law and how law pertains to power structures and the political? Is there a shared critical pedagogical ideology within critical legal studies and if so how could it be formulated?
These are some of the questions this stream seeks to explore. Please send a paper proposal to Ubaldus de Vries at u.devries@uu.nl.
De universiteit is het bolwerk van academische verbeeldingskracht, twijfel en kritiek. Het is een... more De universiteit is het bolwerk van academische verbeeldingskracht, twijfel en kritiek. Het is een platform voor experiment, niet alleen in natuur- en scheikundige of sociaalwetenschappelijke zin maar ook in termen van persoonlijke ontwikkeling en wereldvisie. De universiteit dient de maatschappij en is er onderdeel van door de vragen die het stelt, de (voorlopige) antwoorden die het genereert en de ruimte die het biedt tot ontwikkeling en verbeelding. Althans, zo zou het moeten zijn. Veranderingen in de maatschappelijke context van de universiteit nopen tot een heroverweging van de plaats en functie van de universiteit en de wisselwerking tussen universiteit en maatschappij. Deze wisselwerking wordt thans in sterke mate bepaald door de bedrijfsmatige opvattingen waarbij economische doelen expliciet centraal staan. Het heeft geleid tot een “rationalisering” van de wetenschapsbeoefening waarbij directe maatschappelijke relevantie een, zo niet de belangrijkste, leidraad is geworden. Dat heeft tegelijkertijd geleid tot een verschraling van het Bildungs-aanbod, althans een verschraling in de diepte. Deze bijdrage bepleit een bezinning op de rol en functie van de universiteit die het resultaat zijn van deze bedrijfsmatige inbedding.
Legality offers legal certainty in the sense that it prohibits the exercise of arbitrary power. A... more Legality offers legal certainty in the sense that it prohibits the exercise of arbitrary power. As an aspect of the rule of law it provides boundaries to the state’s playfield (only if and when foreseen by law, the state may act). The precautionary principle stipulates that the absence of scientific certainty is no reason not to act to prevent (environmental) harm. Here, uncertainty is the basis for action. (In the end the principle seeks to reduce uncertainty as well but is uncertain if the desired result is within reach). The precautionary principle potentially expands the possible actions of the state. The axis certainty-uncertainty exposes a tension between legality and the precautionary principle. It is this tension that is subject to analysis in this article
Het Jeffrey-arrest is illustratief voor de betekenis en functie die wij toekennen aan recht en il... more Het Jeffrey-arrest is illustratief voor de betekenis en functie die wij toekennen aan recht en illustreert ook de grenzen van het recht. Nauwkeuriger is om te stellen dat het arrest illustratief is voor de betekenis, grens en functie van het Nederlandse positieve recht in het moderne Westen, dus een naar tijd en plaats gekwalificeerde betekenis van de notie recht. Het arrest maakt duidelijk dat er grenzen zijn aan wat justitiabelen van het Nederlandse recht en juridische procedures mogen verwachten. Emotioneel beladen verwachtingen – emoties als zodanig – hebben geen plaats in het recht voor zover deze verwachtingen ook niet in termen van een vordering kunnen worden vertaald, bijvoorbeeld in de vorm van een vordering tot schadevergoeding. Een van de functies van recht is dat het bijdraagt aan de attributie van verantwoordelijkheid en dit geschiedt op basis van een ‘als… dan…’ causaliteit. Het civiele aansprakelijkheidsrecht is bij uitstek een rechtsgebied dat door deze structuur wordt gekenmerkt, waarbij de attributie van verantwoordelijkheid wordt vertaald in de toekenning van aansprakelijkheid. Dus de een kan een ander aansprakelijk stellen indien de ander door zijn toedoen die ene in zijn belangen heeft geraakt en die belangen kwantificeerbaar zijn in termen van materiële en/of immateriële schade.
This article addresses the shifting nature of the political debate in the Netherlands and the ten... more This article addresses the shifting nature of the political debate in the Netherlands and the tendency by some to feed and feed upon the fear of the populace in respect of the problem of immigration.
This article seeks to describe the role and place of legal normativity in the second modernity. T... more This article seeks to describe the role and place of legal normativity in the second modernity. To this end, a general concept is first defined, by reference to expectations. This approach is owed to the social systems theory of Niklas Luhmann. This theory offers a formal description of expectations by distinguishing between normative and cognitive expectations. As this is only a formal description, recourse must be had to a social theory that offers possibilities to make more concrete normativity in a specific society delineated by both time and space. This theory is the theory of reflexive modernization, as formulated by for example Ulrich Beck. Essentially the theory entails modern society’s confrontation with itself and this implies also in the view of these authors, legal normativity’s confrontation with itself. This confrontation centres on the broadening of the concept of responsibility, as part of transnational justice that transcends the borders of the nation state.
This article seeks to illustrate the relevance of social theory for the study and practice of law... more This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck’s theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a “new” social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like.
The central notion in this article is that of “decision” as a means to shape one’s life and life ... more The central notion in this article is that of “decision” as a means to shape one’s life and life biography. It is considered to be a prominent feature of contemporary society and through which we exercise our autonomy as a right to self-determination. Decisions, however, require information. In contemporary society, information is readily available but the effective use of that information often demands the help of others. Furthermore, as decisions transform into action again we often need others. These ‘others’ must decide for themselves to help or assist us as an expression of their autonomy. These notions of autonomy, decision, information and the other are key notions to understanding the role of self-determination in our society. We are accustomed to legal frameworks that guide, facilitate and limit us in selecting information, making decisions and exercising self-determination. In this article the legal framework on euthanasia, such as exists in the Netherlands, is taken as a case study to illustrate the role of information in respect of self-determination and how information and the access in contemporary society to the abundance of information impact upon decisions we make and, more often than not, must make.
This book of essays follows from and adds to the presentations, discussions and debates – the exc... more This book of essays follows from and adds to the presentations, discussions and debates – the exchan¬ges of ideas – of the Critical Legal Conference 2010, held in Utrecht at the Department of Legal Theory of the Faculty of Law (Utrecht University). The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a sing¬le encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
What ties the essays together is their critique on contem¬porary society or an aspect of society, from a legal-theoretical perspective. Critique implies a method of observation, analysis, interpretation and argumentation, representing a point of view on what is wrong with law in contemporary society. The common denominator is the argument that there is something wrong with law. This is how critical legal theory dis¬tinguishes itself from mainstream legal theory.
What is wrong with law is its actual and potential normative abuse. Social developments demand a critical perspective on law and legal scholarship to lay bare this abuse. These developments relate the financial and economic crisis, the continuing ‘humanitarian’ wars, the rising intolerance to the other and the perceived threat they pose. Hence, human rights are employed by the state to justify torture; the law on patents and intellectual pro¬perty prevent any sense of responsibility for the lack of access to healthcare by the global poor (suffering from aids); trade law exists on the premise of equality of market access, which de facto is a fallacy; and security laws are implemented for the sake of freedom, etc.
Each essay offers, so to speak a social diagnosis to lay bare how law is abused normati¬vely. The essays do so, to open eyes and stimulate debate in the hope to affect some change in what law is and ought to be and do.
This book contains student essays (in Dutch and English) in which the work of Zygmunt Bauman, in ... more This book contains student essays (in Dutch and English) in which the work of Zygmunt Bauman, in particular his "Postmodern Ethics", is critically appraised from a legal perspective, connecting it to issues such as euthanasia, crime and punishment, global justice and organ donation.
Incidents of identity fraud are increasing in scope and variety and can be regarded as a global p... more Incidents of identity fraud are increasing in scope and variety and can be regarded as a global problem. Understanding the problem properly demands a general description of identity fraud. An extensive review of the literature shows that there is no such general description, although it would contribute to the development of a structural and cooperative approach among relevant stakeholders (states, IGOs, private enterprises, NGOs) in Europe and elsewhere to combat identity fraud. This book consists of an analysis of literature in the Netherlands, the USA, the UK, France, Belgium and the European Union. Some 30 definitions were analyzed with an aim to formulate a general definition of identity fraud. Formulating such a definition enabled a subsequent analysis to what extent identity fraud is covered by existing legislative measures and the necessity or desirability of introducing new legislative measures.
This book studies the notions of welfare and production aims as frames of reference for intensive... more This book studies the notions of welfare and production aims as frames of reference for intensive animal farming in the Netherlands. It does so from a political, legal and moral perspective. What is the current legal framework and how can we justify the use of animals (or not) for economic gain.
Law teachers at the university want students to develop a critical attitude. But what exactly doe... more Law teachers at the university want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted? In this article we intend to elucidate the role that critical thinking may play in legal education. We will introduce the idea of skeptical legal education, which is to a large extent based on Michael Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential. Subsequently, the article presents a teaching experiment, where students, based on self-organization, study and discuss fundamental texts. The experiment is meant to demonstrate the possibility of reflexivity in skeptical legal education.
A contracorriente de quienes ven en nuestros tiempos una «postmodernidad» caótica, donde todo ha ... more A contracorriente de quienes ven en nuestros tiempos una «postmodernidad» caótica, donde todo ha perdido sus contornos y no existen ya certezas como en el pasado, Lyana Francot y Ubaldus de Vries, de la mano de la teoría de la modernización reflexiva de Ulrich Beck, demuestran cuán arraigada está nuestra época en la «modernidad» supuestamente superada (o negada) y cuán concretos son sus problemas y sus riesgos. Además, basados en una visión liberal del derecho, proponen una forma de solucionar equitativamente los enormes desafíos que enfrentan nuestras sociedades globalizadas.
This book of essays follows from and adds to the presentations, discussions and debates – the exc... more This book of essays follows from and adds to the presentations, discussions and debates – the exchanges of ideas – of the Critical Legal Conference 2010, held in Utrecht 10-12 September at the Department of Legal Theory of the Faculty of Law (Utrecht University).
The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a single encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
Most law degree courses start with one or more introductory course to law. It is within these co... more Most law degree courses start with one or more introductory course to law. It is within these courses that students get acquainted with law, where it comes from, what it does and how a legal system is organised and structured. Usually, the focus is on positive law – the existing law of the particular jurisdiction in which the student is studying law. It means that introduction to law courses are really introduction to current Dutch positive law, English positive law, etc.
This stream seeks to explore the ideas behind such courses. It does so on the presumption that in these courses the tone is (or can be/should be) set as regards the academic attitude we expect from students: an inquisitive, critical perspective on law, what it is and what it does. What are the perspectives taken on law in these courses and what methods are explored in teaching students to study law inquisitively and critically? Is it by contextualising law through social theory (the age of technology in modernity, post-modernity, liquid modernity, second modernity?), through emphasising a philosophical basis of law and how law pertains to power structures and the political? Is there a shared critical pedagogical ideology within critical legal studies and if so how could it be formulated?
These are some of the questions this stream seeks to explore. Please send a paper proposal to Ubaldus de Vries at u.devries@uu.nl.
De universiteit is het bolwerk van academische verbeeldingskracht, twijfel en kritiek. Het is een... more De universiteit is het bolwerk van academische verbeeldingskracht, twijfel en kritiek. Het is een platform voor experiment, niet alleen in natuur- en scheikundige of sociaalwetenschappelijke zin maar ook in termen van persoonlijke ontwikkeling en wereldvisie. De universiteit dient de maatschappij en is er onderdeel van door de vragen die het stelt, de (voorlopige) antwoorden die het genereert en de ruimte die het biedt tot ontwikkeling en verbeelding. Althans, zo zou het moeten zijn. Veranderingen in de maatschappelijke context van de universiteit nopen tot een heroverweging van de plaats en functie van de universiteit en de wisselwerking tussen universiteit en maatschappij. Deze wisselwerking wordt thans in sterke mate bepaald door de bedrijfsmatige opvattingen waarbij economische doelen expliciet centraal staan. Het heeft geleid tot een “rationalisering” van de wetenschapsbeoefening waarbij directe maatschappelijke relevantie een, zo niet de belangrijkste, leidraad is geworden. Dat heeft tegelijkertijd geleid tot een verschraling van het Bildungs-aanbod, althans een verschraling in de diepte. Deze bijdrage bepleit een bezinning op de rol en functie van de universiteit die het resultaat zijn van deze bedrijfsmatige inbedding.
Legality offers legal certainty in the sense that it prohibits the exercise of arbitrary power. A... more Legality offers legal certainty in the sense that it prohibits the exercise of arbitrary power. As an aspect of the rule of law it provides boundaries to the state’s playfield (only if and when foreseen by law, the state may act). The precautionary principle stipulates that the absence of scientific certainty is no reason not to act to prevent (environmental) harm. Here, uncertainty is the basis for action. (In the end the principle seeks to reduce uncertainty as well but is uncertain if the desired result is within reach). The precautionary principle potentially expands the possible actions of the state. The axis certainty-uncertainty exposes a tension between legality and the precautionary principle. It is this tension that is subject to analysis in this article
Het Jeffrey-arrest is illustratief voor de betekenis en functie die wij toekennen aan recht en il... more Het Jeffrey-arrest is illustratief voor de betekenis en functie die wij toekennen aan recht en illustreert ook de grenzen van het recht. Nauwkeuriger is om te stellen dat het arrest illustratief is voor de betekenis, grens en functie van het Nederlandse positieve recht in het moderne Westen, dus een naar tijd en plaats gekwalificeerde betekenis van de notie recht. Het arrest maakt duidelijk dat er grenzen zijn aan wat justitiabelen van het Nederlandse recht en juridische procedures mogen verwachten. Emotioneel beladen verwachtingen – emoties als zodanig – hebben geen plaats in het recht voor zover deze verwachtingen ook niet in termen van een vordering kunnen worden vertaald, bijvoorbeeld in de vorm van een vordering tot schadevergoeding. Een van de functies van recht is dat het bijdraagt aan de attributie van verantwoordelijkheid en dit geschiedt op basis van een ‘als… dan…’ causaliteit. Het civiele aansprakelijkheidsrecht is bij uitstek een rechtsgebied dat door deze structuur wordt gekenmerkt, waarbij de attributie van verantwoordelijkheid wordt vertaald in de toekenning van aansprakelijkheid. Dus de een kan een ander aansprakelijk stellen indien de ander door zijn toedoen die ene in zijn belangen heeft geraakt en die belangen kwantificeerbaar zijn in termen van materiële en/of immateriële schade.
This article addresses the shifting nature of the political debate in the Netherlands and the ten... more This article addresses the shifting nature of the political debate in the Netherlands and the tendency by some to feed and feed upon the fear of the populace in respect of the problem of immigration.
This article seeks to describe the role and place of legal normativity in the second modernity. T... more This article seeks to describe the role and place of legal normativity in the second modernity. To this end, a general concept is first defined, by reference to expectations. This approach is owed to the social systems theory of Niklas Luhmann. This theory offers a formal description of expectations by distinguishing between normative and cognitive expectations. As this is only a formal description, recourse must be had to a social theory that offers possibilities to make more concrete normativity in a specific society delineated by both time and space. This theory is the theory of reflexive modernization, as formulated by for example Ulrich Beck. Essentially the theory entails modern society’s confrontation with itself and this implies also in the view of these authors, legal normativity’s confrontation with itself. This confrontation centres on the broadening of the concept of responsibility, as part of transnational justice that transcends the borders of the nation state.
This article seeks to illustrate the relevance of social theory for the study and practice of law... more This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck’s theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a “new” social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like.
The central notion in this article is that of “decision” as a means to shape one’s life and life ... more The central notion in this article is that of “decision” as a means to shape one’s life and life biography. It is considered to be a prominent feature of contemporary society and through which we exercise our autonomy as a right to self-determination. Decisions, however, require information. In contemporary society, information is readily available but the effective use of that information often demands the help of others. Furthermore, as decisions transform into action again we often need others. These ‘others’ must decide for themselves to help or assist us as an expression of their autonomy. These notions of autonomy, decision, information and the other are key notions to understanding the role of self-determination in our society. We are accustomed to legal frameworks that guide, facilitate and limit us in selecting information, making decisions and exercising self-determination. In this article the legal framework on euthanasia, such as exists in the Netherlands, is taken as a case study to illustrate the role of information in respect of self-determination and how information and the access in contemporary society to the abundance of information impact upon decisions we make and, more often than not, must make.
This essay pleads for a re-evaluation of the legal method in the Netherlands. The legal method, b... more This essay pleads for a re-evaluation of the legal method in the Netherlands. The legal method, based on case study, causes the study of law to be a practice-embedded discipline and those engaged in the study (and practice) of law to remain locked within the confines of a discipline that does not allow for an alternative or external view on how problems may be resolved. This essay addresses the need to introduce a contextual perspective into Dutch legal research, which necessitates the incorporation of an interdisciplinary approach. In other words, to understand law fully and to understand the problems modern law is facing demands an understanding of society on a socio-theoretical level. We believe social theory to be a fruitful discipline for approaching the contextual study of law. By way of excursus, the essay seeks to show how law and social theory could be integrated. It does so by pointing to the school of thought in contemporary social theory of reflexive modernization. We consider this reflexive view to be characteristic of the new modernity. The new modernity is to be interpreted as the stage of the process of modernization that follows the so-called first modernity. In this new stage we are confronted with the (negative) consequences of the successes of the first modernity. A reflexive view demands a changed frame of reference towards the achievements of the first modernity and a re-evaluation of its foundations, including those of law.
This article seeks to explain the Dutch perspective on euthanasia law, which differs from the rig... more This article seeks to explain the Dutch perspective on euthanasia law, which differs from the rights-based perspective that is employed in the United States. The United States legal system embraces a culture of rights and individualism. Thus, ethical issues, such as abortion and recently, the decriminalization of homosexual acts between consenting male adults, are addressed within the judicial forum, where one person claims the violation or vindication of a right, be it the right to self-determination, privacy, or otherwise. It is in this context that euthanasia, arguably, is referred to as right that can be enforced against the state. The Dutch perspective is quite different. The Netherlands embraces a culture of pragmatism and consensus-building and prefers ethical issues to be addressed through the political process. Accordingly, euthanasia has been addressed within both the political and the judicial process. Prior to the 2001 legislation, euthanasia was a criminal offense and doctors who assisted their patients were prosecuted. The courts found opportunities within the criminal law to exonerate doctors without explicitly making a statement about the need for lawful euthanasia. This decision was left to the politicians. The article first reviews the body of case law and the subsequent legislation that allows for euthanasia in certain circumstances. The law has created a medical exception that has made hopeless and unbearable suffering the foundation of lawful euthanasia. Because “suffering” is the root of the exception, an analysis of the judicial interpretation of “suffering” is merited. The analysis will show that judicial interpretation has reached its limits, and by implication, the limits of lawful euthanasia have been reached. The limits of lawful euthanasia are then further explored with a particular emphasis on the role of the doctor and his duty to report cases of euthanasia. The many problems that exist are addressed before concluding that Dutch law is at a crossroad; the courts must either extend lawful euthanasia to include “non-medical” cases of euthanasia or maintain the status quo which limits euthanasia to cases involving illness with hopeless and unbearable suffering. The article suggests in conclusion that as life itself develops, so too develops one’s perspective on death and dying and the treatment at life’s end. It is inevitable that to choose to die becomes as much part of an individual’s life as one’s choice to live.
Incidents of identity fraud are increasing in scope and variety and can be regarded as a global p... more Incidents of identity fraud are increasing in scope and variety and can be regarded as a global problem. Understanding the problem properly demands a general description of identity fraud. An extensive review of the literature shows that there is no such general description, although it would contribute to the development of a structural and cooperative approach among relevant stakeholders (states, IGOs, private enterprises, NGOs) in Europe and elsewhere to combat identity fraud. This article reports on a research project that has been carried out by Dutch authors. It consisted of an analysis of literature in the Netherlands, the USA, the UK, France, Belgium and the European Union. Some 30 definitions were analyzed with an aim to formulate a general definition of identity fraud. Formulating such a definition enabled a subsequent analysis to what extent identity fraud is covered by existing legislative measures and the necessity or desirability of introducing new legislative measures.
This article addresses the relationship between teaching and research. This relationship is and h... more This article addresses the relationship between teaching and research. This relationship is and has been for some time a tense one. Though teaching becomes more important, research remains the yardstick for professional development. The introduction of the undergraduate-graduate structure, budget cuts and increasing teaching loads are perceived as a threat. This article, though, contends that the current state of affairs allows for the strengthening of the relationship between teaching an research. It argues for the necessity of integrating teaching and research, from a contextual perspective using a multidisciplinary approach. After a brief sketch the Dutch higher education system, and a discussion of the implications for legal education of recent changes in it, the article explains the prevailing legal education philosophy in the Netherlands, with its focus on practice and considers why this approach insufficient and, instead, pleading for a reflexive view on legal education. The integration of teaching and research substantiates this plea, and we will explain what we mean with the integration of teaching and research and how this may be achieved. Part of this is the attention that must be given to a contextual perspective, and therefore a multidisciplinary approach.
The world is in a state of flux, where that that seems to speak for itself is no longer so: all i... more The world is in a state of flux, where that that seems to speak for itself is no longer so: all is up for grabs; everything demands reconsideration. Old certainties have lost their validity and we have to get to grips with new uncertainties. This state of anxiety also relates to how we trust institutions such as the state. We turn to the state for guidance and demand from it to take action to preserve a sense of security. Criminal law, or penal law, is an instrument to which one easily turns to ‘achieve’ this sense of security. Indeed, criminal law is used as an instrument to effect change and manipulate behaviour repressively (rather than using it as a measure of last resort). The measures pertaining to fighting terrorist threat is illustrative but also other measures such as camera surveillance, area restrictions, stop-and-search actions in centres of leisure, etc. are illustrations of the instrumental repressive use of criminal law. But does it work? What do we gain? What do we lose? Considering the protection of archaeological heritage and its exploration I sense a similar demand: regulation through a variety of legal instruments to preserve the heritage as well as to preserve, or so it seems, the monopoly upon heritage preservation. So the solution is easy: repressive action through criminalisation, effected by a proper organisational back-up of inspectors, police and administration. It will be sold well, politically, considering the goal: preservation of the physical past combined with the need to re-establish national identities throughout Europe. In this lecture, I seek to ask some fundamental questions, about law and, as far as my knowledge goes, about archaeology. Taking the Valetta convention as a guiding line (as well as Dutch legal measures), I wish to explore: 1. The worth and function of preserving archaeological objects and the political, scientific, cultural and social significance of these objects; 2. The role of the state and the professional body of archaeologist in respect of the political, scientific, cultural and social significance; 3. Legal instruments to regulate archaeology, physical heritage and excavation, with a special emphasis on the role of criminal law; and 4. Alternative ways of thinking that could be explored to redefine the first aspect and to develop alternative instruments of regulation and control.
In this lecture I want to do four things. I first seek to sketch a broad overview of the essentia... more In this lecture I want to do four things. I first seek to sketch a broad overview of the essentials of Beck’s work, focusing on the distinction between first and second modernity, or rather the transition from first modernity towards second modernity, characterised by the radicalisation of the processes of modernity (It is the first theorem.) From it follows an outline of Beck’s description of society as a world risk society where I will focus on the notion of risk in particular and point to what is problematic about his notion of risk. (It is the second theorem.) Second modernity poses a new distribution problem (among other problems): that of risks. In order to address the problem, Beck proposes a new outlook that corresponds to a large extent with how Beck perceives risks: a cosmopolitan outlook. (The third theorem.) Finally, time permitting, I want to readdress the legal angle and conclude what reflexive modernisation means for the legal discipline, both in terms of practice and in terms of scholarship and theory.
As scholars we are engaged in teaching law. As legal theorist and philosophers we are engaged in ... more As scholars we are engaged in teaching law. As legal theorist and philosophers we are engaged in confronting students with the fundamental questions about law: What is it? How can we recognise it? What does it do? Where does it come from? Etc. We discuss these questions and perhaps answer them by reference to established theories of law. In presenting these theories, we disclose our preference albeit often in an implicit way. The question I seek to raise in this paper is whether we must account for our choice and preference, i.e. disclosing our normative and, by implication, political position as a scholar, whatever that position is. Drawing on critical theory, I raise ethical issues concerning the assumed irony of the scholar or perceived neutrality and claim that this is no longer an option. The Wilders case and the ‘Fitna’ controversy are taken as reference point. They show scholarly unease about expounding upon law’s function and purpose without taking a political stance.
The idea of cosmopolitanism lies in the ideal of global justice. In this presentation I understan... more The idea of cosmopolitanism lies in the ideal of global justice. In this presentation I understand global justice in terms of distributive justice and the problem it must address is consti¬tu¬ted by the radicalisation of inequality of individuals within, among and across nation states. This inequality exists in the unjust distribution of both wealth and its side effects: risks. Taking a disciplinary perspective, the presentation considers the problem of modern law, which exists in the factual and spatial limitation and points to the need of global law to overcome these limitations. To this end it introduces a global Grundnorm, which exudes a cosmopolitan spirit. The fundamental question though is how to transform modern law into global law and the paper suggests that this transfor¬ma¬tion lies in a shift of perspective for which contemporary cosmopolita¬nism provides the intellec¬tual feeding ground.
I find myself on foreign territory, being but only familiar with the debate about the fact-value ... more I find myself on foreign territory, being but only familiar with the debate about the fact-value distinction. Rather, as a member of the Working Group of (Reflexive) Modernisation and Law, I find myself at the junction of legal theory and social theory (perhaps a fact-value distinction at a higher level of abstraction). My premise is that law serves society, or at least does something in or for society, and to understand law is to understand society. In this paper I seek to make two points. One about the distinction itself and one pedagogical argument, considering that we soon start teaching and I guess most of us will yet again introduce law to a bunch of new students.
When excavating legal modernity the remnants of a societal structure are laid bare. This structur... more When excavating legal modernity the remnants of a societal structure are laid bare. This structure was framed by a heteronymous legal system. It envisaged the enlightenment of the masses by means of rules imposed top down by an intellectual elite seeking to herd the flock. Bauman, drawing heavily on Foucault, denotes this top-down rule as: “the domination typical of ‘pastoral power’, one of the most insidious of the many shapes of domination, as it blackmails its objects into obedience and lulls its agents into self-righteousness by representing itself as self-sacrifice in the name of ‘the life and salvation of the flock’”. Moral autonomy allows for critical resistance towards extreme contemporary flashes of legal modernity which are visible in nationalistic tendencies across Europe. This presentation explores tentatively, as work in progress, the possibility of formulating a critical legal theory based on the Baumanian analysis of contemporary society and the role of law and ethics therein. The kernel of such a theory, it is suggested, lies in the courage of moral responsibility in the knowledge of uncertainty. In a globalising world such an attitude and perspective serves as a counterweight to the apparent prevailing focus, in practice, on the heteronomy of law within the developing new imperialism.
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Books by Bald de Vries
What ties the essays together is their critique on contem¬porary society or an aspect of society, from a legal-theoretical perspective. Critique implies a method of observation, analysis, interpretation and argumentation, representing a point of view on what is wrong with law in contemporary society. The common denominator is the argument that there is something wrong with law. This is how critical legal theory dis¬tinguishes itself from mainstream legal theory.
What is wrong with law is its actual and potential normative abuse. Social developments demand a critical perspective on law and legal scholarship to lay bare this abuse. These developments relate the financial and economic crisis, the continuing ‘humanitarian’ wars, the rising intolerance to the other and the perceived threat they pose. Hence, human rights are employed by the state to justify torture; the law on patents and intellectual pro¬perty prevent any sense of responsibility for the lack of access to healthcare by the global poor (suffering from aids); trade law exists on the premise of equality of market access, which de facto is a fallacy; and security laws are implemented for the sake of freedom, etc.
Each essay offers, so to speak a social diagnosis to lay bare how law is abused normati¬vely. The essays do so, to open eyes and stimulate debate in the hope to affect some change in what law is and ought to be and do.
Papers by Bald de Vries
The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a single encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
This stream seeks to explore the ideas behind such courses. It does so on the presumption that in these courses the tone is (or can be/should be) set as regards the academic attitude we expect from students: an inquisitive, critical perspective on law, what it is and what it does. What are the perspectives taken on law in these courses and what methods are explored in teaching students to study law inquisitively and critically? Is it by contextualising law through social theory (the age of technology in modernity, post-modernity, liquid modernity, second modernity?), through emphasising a philosophical basis of law and how law pertains to power structures and the political? Is there a shared critical pedagogical ideology within critical legal studies and if so how could it be formulated?
These are some of the questions this stream seeks to explore. Please send a paper proposal to Ubaldus de Vries at u.devries@uu.nl.
What ties the essays together is their critique on contem¬porary society or an aspect of society, from a legal-theoretical perspective. Critique implies a method of observation, analysis, interpretation and argumentation, representing a point of view on what is wrong with law in contemporary society. The common denominator is the argument that there is something wrong with law. This is how critical legal theory dis¬tinguishes itself from mainstream legal theory.
What is wrong with law is its actual and potential normative abuse. Social developments demand a critical perspective on law and legal scholarship to lay bare this abuse. These developments relate the financial and economic crisis, the continuing ‘humanitarian’ wars, the rising intolerance to the other and the perceived threat they pose. Hence, human rights are employed by the state to justify torture; the law on patents and intellectual pro¬perty prevent any sense of responsibility for the lack of access to healthcare by the global poor (suffering from aids); trade law exists on the premise of equality of market access, which de facto is a fallacy; and security laws are implemented for the sake of freedom, etc.
Each essay offers, so to speak a social diagnosis to lay bare how law is abused normati¬vely. The essays do so, to open eyes and stimulate debate in the hope to affect some change in what law is and ought to be and do.
The Critical Legal Conference is an annual gathering of legal scholars that share a critical outlook on law and legal scholarship. This year’s conference focused, as a main theme, on exposing the normative abuse of law against the background of ‘multiple modernities’, i.e. the idea that modernity is not a single encompassing, Western concept but entails different traditions and ways of thought about contemporary society.
This stream seeks to explore the ideas behind such courses. It does so on the presumption that in these courses the tone is (or can be/should be) set as regards the academic attitude we expect from students: an inquisitive, critical perspective on law, what it is and what it does. What are the perspectives taken on law in these courses and what methods are explored in teaching students to study law inquisitively and critically? Is it by contextualising law through social theory (the age of technology in modernity, post-modernity, liquid modernity, second modernity?), through emphasising a philosophical basis of law and how law pertains to power structures and the political? Is there a shared critical pedagogical ideology within critical legal studies and if so how could it be formulated?
These are some of the questions this stream seeks to explore. Please send a paper proposal to Ubaldus de Vries at u.devries@uu.nl.
This state of anxiety also relates to how we trust institutions such as the state. We turn to the state for guidance and demand from it to take action to preserve a sense of security. Criminal law, or penal law, is an instrument to which one easily turns to ‘achieve’ this sense of security. Indeed, criminal law is used as an instrument to effect change and manipulate behaviour repressively (rather than using it as a measure of last resort). The measures pertaining to fighting terrorist threat is illustrative but also other measures such as camera surveillance, area restrictions, stop-and-search actions in centres of leisure, etc. are illustrations of the instrumental repressive use of criminal law. But does it work? What do we gain? What do we lose?
Considering the protection of archaeological heritage and its exploration I sense a similar demand: regulation through a variety of legal instruments to preserve the heritage as well as to preserve, or so it seems, the monopoly upon heritage preservation. So the solution is easy: repressive action through criminalisation, effected by a proper organisational back-up of inspectors, police and administration. It will be sold well, politically, considering the goal: preservation of the physical past combined with the need to re-establish national identities throughout Europe.
In this lecture, I seek to ask some fundamental questions, about law and, as far as my knowledge goes, about archaeology. Taking the Valetta convention as a guiding line (as well as Dutch legal measures), I wish to explore:
1. The worth and function of preserving archaeological objects and the political, scientific, cultural and social significance of these objects;
2. The role of the state and the professional body of archaeologist in respect of the political, scientific, cultural and social significance;
3. Legal instruments to regulate archaeology, physical heritage and excavation, with a special emphasis on the role of criminal law; and
4. Alternative ways of thinking that could be explored to redefine the first aspect and to develop alternative instruments of regulation and control.